-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NEnBqb0FCNHn5PDayGwkCMY16LmutdSH7SdlxHoPo/3htmInaFcgVPmNjTnDmiqp orqKk8zj8gkUqZjBaMEXCw== 0000950149-03-002305.txt : 20031009 0000950149-03-002305.hdr.sgml : 20031009 20031009172215 ACCESSION NUMBER: 0000950149-03-002305 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20031009 GROUP MEMBERS: ALFRED D. KINGSLEY GROUP MEMBERS: GARY K. DUBERSTEIN GROUP MEMBERS: GREENBELT CORP. GROUP MEMBERS: GREENBROOK VALLEY LLC GROUP MEMBERS: GREENHOUSE PARTNERS, L.P. GROUP MEMBERS: GREENMINT LLC GROUP MEMBERS: GREENWAY PARTNERS, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIOTIME INC CENTRAL INDEX KEY: 0000876343 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 943127919 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-42290 FILM NUMBER: 03935649 BUSINESS ADDRESS: STREET 1: 935 PARDEE ST CITY: BERKELEY STATE: CA ZIP: 94710 BUSINESS PHONE: 5108459535 MAIL ADDRESS: STREET 1: 935 PARDEE STREET CITY: BERKELEY STATE: CA ZIP: 94710 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GREENWAY PARTNERS L P CENTRAL INDEX KEY: 0000938356 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 277 PARK AVE 27TH FL CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2123505100 MAIL ADDRESS: STREET 1: 277 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 f93555sc13dza.htm AMENDMENT NO. 12 TO SCHEDULE 13D SC 13D/A
 

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 12)*

BIOTIME INC.

(Name of Issuer)

Common Shares, no par value

(Title of Class of Securities)

09066L105

(Cusip Number)

Gary K. Duberstein, Esq.
Greenway Partners, L.P.
110 E. 59th Street, Suite 3203
New York, New York 10022
(212) 355-6800

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

October 2, 2003

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

             
CUSIP No. 09066L105 Page 2 of 15
  1. Name of Reporting Person:
GREENBELT CORP.		 I.R.S. Identification Nos. of above persons (entities only):
13-3791931
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
00
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
814,460
8. Shared Voting Power:
0
9. Sole Dispositive Power:
814,460
10.Shared Dispositive Power:
0
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
814,460
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
5.9%
  14.Type of Reporting Person (See Instructions):
CO

 

             
CUSIP No. 09066L105 Page 3 of 15
  1. Name of Reporting Person:
GREENWAY PARTNERS, L.P.		 I.R.S. Identification Nos. of above persons (entities only):
13-3714238
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
WC, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
90,750
8. Shared Voting Power:
0
9. Sole Dispositive Power:
90,750
10.Shared Dispositive Power:
0
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
90,750
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.7%
  14.Type of Reporting Person (See Instructions):
PN

 

             
CUSIP No. 09066L105 Page 4 of 15
  1. Name of Reporting Person:
GREENHOUSE PARTNERS, L.P.		 I.R.S. Identification Nos. of above persons (entities only):
13-3793447
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
WC, AF, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
90,750
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
90,750
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
90,750
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.7%
  14.Type of Reporting Person (See Instructions):
PN

 

             
CUSIP No. 09066L105 Page 5 of 15
  1. Name of Reporting Person:
GREENBROOK VALLEY LLC		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
WC, AF, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
90,750
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
90,750
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
90,750
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.7%
  14.Type of Reporting Person (See Instructions):
OO

 

             
CUSIP No. 09066L105 Page 6 of 15
  1. Name of Reporting Person:
GREENMINT LLC		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
WC, AF, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
Delaware
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0
8. Shared Voting Power:
90,750
9. Sole Dispositive Power:
0
10.Shared Dispositive Power:
90,750
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
90,750
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
0.7%
  14.Type of Reporting Person (See Instructions):
OO

 

             
CUSIP No. 09066L105 Page 7 of 15
  1. Name of Reporting Person:
ALFRED D. KINGSLEY		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
PF, AF, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
United States
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
2,339,477
8. Shared Voting Power:
905,210
9. Sole Dispositive Power:
2,339,477
10.Shared Dispositive Power:
905,210
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
3,244,687
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
22.9%
  14.Type of Reporting Person (See Instructions):
IN

 

             
CUSIP No. 09066L105 Page 8 of 15
  1. Name of Reporting Person:
GARY K. DUBERSTEIN		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) x  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
PF, AF, OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
United States
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
10,895
8. Shared Voting Power:
905,210
9. Sole Dispositive Power:
10,895
10.Shared Dispositive Power:
905,210
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
916,105
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
6.7%
  14.Type of Reporting Person (See Instructions):
IN

 

This Amendment No. 12 (“Amendment No. 12”) amends and supplements the Statement on Schedule 13D (as amended by Amendment No. 1, dated May 14, 1998, Amendment No. 2, dated August 18, 2000, Amendment No. 3, dated December 8, 2000, Amendment No. 4, dated March 30, 2001, Amendment No. 5, dated August 31, 2001, Amendment No. 6, dated April 1, 2002, Amendment No. 7 dated April 17, 2002, Amendment No. 8 dated May 31, 2002, Amendment No. 9 dated July 3, 2002, Amendment No. 10 dated December 3, 2002,and Amendment No. 12 dated April 25, 2003 (the “Statement”)) relating to the common shares, no par value (the “Shares”), of BioTime Inc., a California corporation (the “Company”), and is filed by and on behalf of Greenbelt Corp. (“Greenbelt”), Greenway Partners, L.P. (“Greenway”), Greenhouse Partners, L.P. (“Greenhouse”), Greenbrook Valley LLC (“Greenbrook”), Greenmint LLC (“Greenmint”), Alfred D. Kingsley and Gary K. Duberstein (collectively, the “Reporting Persons”). Unless otherwise defined herein, all capitalized terms used herein shall have the meanings previously ascribed to them in the previous filing of the Statement.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

The information presented in response to item 6 is incorporated by reference herein.

Page 9 of 15

 

ITEM 4. PURPOSE OF TRANSACTION

     The information presented in response to Item 6 is incorporated by reference herein.

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER

     (a)  As of September 30, 2003, the Reporting Persons beneficially owned in the aggregate 3,255,582 Shares constituting 23% of the outstanding Shares. Pursuant to Rule 13d-3 under the Securities and Exchange Act of 1934, (i) such aggregate number includes 310,769 shares that Mr. Kingsley may acquire upon the exercise of previously reported warrants owned by Mr. Kingsley (the “Kingsley Warrant Shares”), and (ii) 40,000 Shares (the “Greenbelt Consulting Shares”) earned from March 31, 2003 through September 30, 2003, but not issuable until January 2, 2004, under the “2003 Consulting Agreement” as hereinafter defined. The percentage of Shares beneficially owned by the Reporting Persons is determined based upon an aggregate of 14,145,717 Shares outstanding consisting of (a) the 13,654,949 Shares outstanding on August 14, 2003, based upon the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003, (b) the 310,769 Kingsley Warrant Shares, (c) 40,000 Greenbelt Consulting Shares issuable on January 2, 2004, and (d) 139,999 PIK Warrant Shares. The Reporting Persons may be deemed to have direct beneficial ownership of Shares as set forth in the following table. In such table, pursuant to Rule 13d-3, the Greenbelt Consulting Shares are deemed outstanding for determining the percentage ownership of Shares by Greenbelt. The Kingsley Warrant Shares, and 139,999 PIK Warrant Shares are deemed outstanding for determining the percentage ownership of Shares by Mr. Kingsley, who is the direct beneficial owner thereof.

Page 10 of 15

 

                 
            Approximate Percentage
Name   Number of Shares   of Outstanding Shares
 
 
Greenbelt
     814,460       5.9 %
Greenway
     90,750       0.7 %
Kingsley
     2,339,477       16.6 %
Duberstein
     10,895       0.1 %

     Greenbelt has direct beneficial ownership of 814,460 Shares, including the Greenbelt Consulting Shares. Each of Messrs. Kingsley and Duberstein, as executive officers and directors of Greenbelt, may be deemed to beneficially own the Shares that Greenbelt beneficially owns. Each of Messrs. Kingsley and Duberstein disclaims beneficial ownership of such Shares for all other purposes.

     Greenhouse, as the general partner of Greenway, may be deemed to own beneficially (as that term is defined in Rule 13d-3) Shares which Greenway may be deemed to possess direct beneficial ownership. Each of Messrs. Kingsley and Duberstein, and Greenbrook and Greenmint, through their ability to control Greenhouse, may be deemed to beneficially own Shares which Greenhouse may be deemed to beneficially own. Each of Messrs. Kingsley and Duberstein, and Greenbrook and Greenmint, disclaims beneficial ownership of such Shares for all other purposes.

     (b)  Greenbelt has the sole power to vote or direct the vote of 814,460 Shares, including the 40,000 Greenbelt Consulting Shares when issued, and the sole power to dispose or direct the disposition of such Shares. Messrs. Kingsley and Duberstein may be deemed to share with Greenbelt the power to vote or to direct the vote and to dispose or to direct the disposition of such Shares.

     Greenway has the sole power to vote or direct the vote of 90,750 Shares and the sole power to dispose or direct the disposition of such Shares. Greenhouse, Greenbrook, Greenmint and Messrs. Kingsley and Duberstein may be deemed to share with Greenway the power to vote or to direct the vote and to dispose or to direct the disposition of such Shares.

     If Mr. Kingsley were to exercise in full the warrants he holds, which are all presently exercisable, he would have the sole power to vote or direct the vote of 2,339,477 Shares and the sole power to dispose or direct the disposition of such Shares.

Page 11 of 15

 

     Mr. Duberstein has the sole power to vote or direct the vote of 10,895 Shares and the sole power to dispose or direct the disposition of such Shares.

     (c)  Information concerning transactions in the Shares by the Reporting Persons since the filing of Amendment No. 11 is set forth in Item 6.

     (d)  No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares reported in this Statement.

     (e)  Not applicable.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

     On October 3, 2003, the Company filed a registration statement on Form S-3 to register 13,654,949 subscription rights (“Rights”) that the Company plans to distribute to its shareholders. The Company’s shareholders will receive one Right for each share owned, and the Rights will entitle the holders to purchase one “Unit” for every eight Rights owned (the “Rights Offer”). Each Unit will consist of one new common share and one-half of a warrant to purchase an additional common share. The subscription price for the Units is $1.40 per Unit. Each full warrant will entitle the holder to purchase one common share for $2.00 per share.

     The warrants will expire in three years. The Company may redeem the warrants by paying $.05 per warrant if the closing price of the common shares exceeds 200% of the exercise price of the warrants for any 20 consecutive trading days, subject to certain restrictions.

     Shareholders who fully exercise their rights will also be entitled to the additional privilege of purchasing, subject to certain limitations and allocation, any Units not acquired by holders of Rights who allow their Rights to expire unexercised. In addition, if the Rights offer is over-subscribed, up to 853,434 additional Units may be allocated and sold to shareholders who exercise the over-subscription privilege.

     The Rights will be listed for trading on the American Stock Exchange (the “AMEX”) where the Company’s common shares are traded. The Company has filed an application to list the warrants on the AMEX as well.

     A group of private investors (the “Guarantors”) and holders of $1,500,000 in principal amount of BioTime Series 2001-A debentures (the “Participating Debenture Holders”) have agreed to purchase Units that remain unsold at the conclusion of the Rights offer, excluding Units that the Company has authorized to issue to fill over-subscriptions, and subject to maximum purchase commitment of $2,250,000. The Participating Debenture Holders will purchase their portion of any unsold Units by exchanging a principal amount Series 2001-A debentures (the “Debentures”) equal to the purchase price of the Units. The Debentures were privately placed and are not publicly traded.

     Alfred D. Kingsley is a Guarantor and a Participating Debenture Holder. Mr. Kingsley’s purchase commitment under the Standby Purchase Agreement as a Guarantor is $187,500, payable in cash, and his purchase commitment as a Participating Debenture Holder is $789,474, payable in Debentures. Mr. Kingsley owns $1,500,000 of the $3,350,000 of Debentures outstanding.

     In addition to the Units that may be issued through the exercise of the Rights and Units that may be sold to fill excess over-subscriptions, the Company will offer to sell up to an additional 428,571 Units at the subscription price directly to the Guarantors and their designees. The Guarantors will not be obligated to purchase any of these additional Units. Each Guarantor will have the right to purchase his prorata portion of these Units based upon the ratio of his purchase commitment in the Rights Offer to the purchase commitments of the other Guarantors under the Standby Purchase Agreement. Mr. Kingsley will have the right to purchase 107,142 of these Units. Each Guarantor may purchase any Units not purchased by other Guarantors or their designees, subject to proration among the Guarantors who desire to purchase such Units.

     The Company is also offering all holders of its Debentures the opportunity to exchange up to $1,500,000 of those Debentures for Units at the subscription price per Unit. The Participating Debenture Holders will have priority over other Debenture holders in exchanging their Debentures for these Units.

     The Participating Debenture Holders have agreed to exchange $1,500,000 of their Debentures for Units, if the Rights offer is over-subscribed so that BioTime issues all of the Units reserved to fill excess over-subscriptions, and if the Guarantors purchase all 428,571 additional Units offered to them. The Company has agreed that if this occurs, it will prepay the remaining outstanding principal balance of Debentures ($1,850,000) plus accrued interest.

     Based on his ownership of $1,500,000 of Debentures, and his priority as a Participating Debenture Holder, Mr. Kingsley would be entitled to acquire 563,910 Units (563,910 common shares and 281,955 warrants) in exchange for $789,474 of his Debentures if all of the Participating Debenture Holders are required to exchange, or if all of the Participating Debenture Holders or all of the Debenture holders elect to exchange, their Debentures for Units. It will be possible for Mr. Kingsley to acquire more Units if the Participating Debenture Holders are not required to exchange their Debentures for Units and if they (other than Mr. Kingsley) and the other Debenture holders do not elect to voluntarily exchange their full pro rata share of Debentures for Units in the exchange offer. Mr. Kingsley has not determined the amount of his Debentures that he will voluntarily exchange for Units.

     Under the Standby Purchase Agreement, the Company has agreed to pay the Guarantors a cash fee of $50,000 and to issue them warrants to purchase 250,000 common shares, and has agreed to pay the Participating Debenture Holders a cash fee of $100,000 and to issue them 500,000 warrants as consideration for their agreement to purchase unsold Units in the Rights Offer. The warrants will be exercisable at $2.00 per share and are identical to those that will be issued in the Rights Offer. The cash fees and warrants will be allocated among the Guarantors and the Participating Debenture Holders pro rata according to their respective purchase commitments. Mr. Kingsley would receive total cash fees of $65,131.60 and warrants to purchase 263,158 shares. The Company has agreed to keep the registration statement in effect to permit the Guarantors and Participating Debenture Holders to sell their shares and warrants and to exercise their warrants and sell the common shares issued upon such exercise.

     The Reporting Persons will receive one Right per share in the Rights Offer, on the same terms as other shareholders of the Company.

     Each Reporting Person may exercise or sell their Rights, in whole or in part, or may allow some or all of their Rights to expire unexercised. Each Reporting Person may hold for investment purposes any common shares and warrants they may acquire through the exercise of Rights or, in the case of Mr. Kingsley, under the Standby Purchase Agreement, or they may sell common shares and warrants from time to time on the AMEX at prevailing market prices, or at prices related to the prevailing market price, or in privately negotiated transactions. They also may sell common shares in connection with the exercise of their warrants or they may hold those shares for investment purposes and sell them at a later date.

     The Company has not yet set a record date for determining shareholders entitled to receive the Rights. The distribution of the Rights and commencement of the Rights Offer will not occur until the Registration Statement becomes effective. The expiration date of the Rights and the warrants will not be set until the distribution date of the Rights has been determined. The Company reserves the right to cancel, terminate or amend the Rights Offer at any time before subscriptions are accepted. If the Company cancels or terminates the Rights Offer, Mr. Kingsley and the other Guarantors and Participating Debenture Holders will not be entitled to receive cash fees and warrants, or to purchase Units, or to exchange Debentures for Units, pursuant to the Standby Purchase Agreement.

     The above description of the Rights Offer, the Rights, and the warrants is a summary only, is based upon information contained in the Registration Statement on Form S-2 filed by the Company, and is qualified in all respects by the full content of the Registration Statement, including the prospectus included therein and the exhibits filed therewith.

On October 8, 2003, Greenbelt signed a letter agreement with the Company further extending and modifying their Consulting Agreement (the “2003 Consulting Agreement”) setting forth the terms pursuant to which Greenbelt will act as a financial adviser to the Company for the period April 1, 2003 through March 31, 2004, unless sooner terminated. The 2003 Consulting Agreement provides for the payment by the Company to Greenbelt for its financial advisory services of certain cash consideration and the issuance of 80,000 Shares over the term of the agreement. A copy of the 2003 Consulting Agreement is attached hereto as Exhibit 26 and is incorporated herein by reference.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS

The following Exhibits are filed herewith:

      DESCRIPTION
 
       
 
  22.   Standby Purchase Agreement dated October 2, 2003 between BioTime, Inc. and Alfred D. Kingsley, and certain other persons named as Guarantors and Participating Debenture Holders therein. (Incorporated by reference to Exhibit 10.19 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)

Page 12 of 15

 

  23.   Form of Subscription Right Certificate. (Incorporated by reference to Exhibit 4.2 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  24   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.3 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  25   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.4 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  26   2003 Consulting Agreement, dated October 8, 2003, between BioTime, Inc. and Greenbelt Corp.

Page 13 of 15

 

SIGNATURES

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information contained in this Statement is true, complete and correct.

Dated: October 8, 2003

             
GREENHOUSE PARTNERS, L.P   GREENMINT LLC
By:   Greenmint LLC,        
    its general partner   By:   /s/Gary K. Duberstein
           
            Gary K. Duberstein,
By:   /s/Gary K. Duberstein       Member
   
       
    Gary K. Duberstein,        
    Member   GREENBROOK VALLEY LLC
        By:   /s/Alfred D. Kingsley
           
GREENWAY PARTNERS, L.P.       Alfred D. Kingsley
By:   Greenhouse Partners, L.P.,       Member
    its general partner        
 
By:   Greenmint LLC, its general partner        
By:   /s/Gary K. Duberstein        
   
       
    Gary K. Duberstein,
Member		        
             
GREENBELT CORP.        
By:   /s/Alfred D. Kingsley        
   
       
    Alfred D. Kingsley,        
    President        
 
    /s/Alfred D. Kingsley        
   
       
    Alfred D. Kingsley        
 
    /s/Gary K. Duberstein        
   
       
    Gary K. Duberstein        

Page 14 of 15

 

EXHIBIT INDEX

      DESCRIPTION
 
       
 
  22   Standby Purchase Agreement dated October 2, 2003 between BioTime, Inc. and Alfred D. Kingsley and certain other persons named as Guarantors and Participating Debenture Holders therein. (Incorporated by reference to Exhibit 10.19 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  23   Form of Subscription Right Certificate. (Incorporated by reference to Exhibit 4.2 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  24   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.3 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  25   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.4 of BioTime’s Registration Statement on Form S-3 No. 333-109442 filed with the Securities and Exchange Commission October 3, 2003)
 
       
 
  26   2003 Consulting Agreement, dated October 8, 2003, between BioTime, Inc. and Greenbelt Corp.

Page 15 of 15 EX-26 3 f93555exv26.htm EXHIBIT 26 Exhibit 26

 

EXHIBIT 26

October 8, 2003

BioTime, Inc.
935 Pardee Street
Berkeley, California 94710
Attention: Judith Segall, Vice President-Operations

  RE:   Financial Adviser Agreement

Dear Judith:

     This letter sets forth the terms on which the letter agreement between BioTime, Inc. (“BioTime”) and Greenbelt Corp. (“Financial Adviser”), dated April 30, 1998, as amended, (the “Agreement”) shall be extended and modified.

     1.     Expiration Date. The term of the Agreement will continue in effect from April 1, 2003 through March 31, 2004. BioTime acknowledges that the Financial Advisor has provided services under the Agreement subsequent to March 31, 2003 while the parties were discussing new compensation arrangements for services rendered.

     2.     Compensation. BioTime agrees to pay Greenbelt a cash fee of $90,000 and to issue to Greenbelt 80,000 common shares (the “Shares”) in quarterly installments as follows: (a) $45,000 in cash will be payable October 9, 2003, and the balance of the cash will be payable in two quarterly installments of $22,500 each on January 2, 2004 and March 31, 2004, and (b) 60,000 Shares will be issuable on January 2, 2004 for services rendered through December 31, 2003, and 20,000 Shares will be issuable on March 31, 2004 for services rendered from January 1, 2004 through that date. In the event that the Agreement is terminated by either party and such termination takes effect on a date other than the last day of a calendar quarter, the amount of cash and number of Shares issuable with respect to the calendar quarter will be pro rated, to the nearest whole Share, by multiplying the amount of cash payable and Shares issuable for that quarter by a fraction the numerator of which is the number of days that have elapsed from the first day of the calendar quarter through the date of termination, and the denominator of which is the number of days in the calendar quarter.

     3.     Investment Representations. Financial Adviser represents and warrants to BioTime that:

          (a) Financial Adviser has received and read BioTime’s Annual Report on Form 10-K/A-1 for the year ended December 31, 2002, including the risks described in the “Risk Factors” section, BioTime’s Quarterly Reports on Form 10-Q for the three and six month periods ended March 31, 2003 and June 30, 2003 (collectively, the “SEC Filings”). Financial Adviser is relying on the information provided in the SEC Filings or otherwise communicated to Financial Adviser in writing by BioTime. Financial Adviser has not relied on any statement or representations

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inconsistent with those contained in the SEC Filings. Financial Adviser has had a reasonable opportunity to ask questions of and receive answers from the executive officers and directors of BioTime, or one or more of its officers, concerning BioTime and to obtain additional information, to the extent possessed or obtainable without unreasonable effort or expense, necessary to verify the information in the SEC Filings. All such questions have been answered to Financial Adviser’s satisfaction;

          (b) Financial Adviser understands that the Shares are being offered and sold without registration under the Securities Act of 1933 (the “1933 Act”) or qualification under the California Corporate Securities Law of 1968, or under the laws of other states, in reliance upon the exemptions from such registration and qualification requirements for non-public offerings. Financial Adviser acknowledges and understands that the availability of the aforesaid exemptions depends in part upon the accuracy of certain of the representations, declarations and warranties contained herein, which Financial Adviser hereby makes with the intent that they may be relied upon by BioTime and its officers and directors in determining Financial Adviser’s suitability to purchase the Shares. Financial Adviser understands and acknowledges that no federal, state or other agency has reviewed or endorsed the offering of the Shares or made any finding or determination as to the fairness of the offering or completeness of the information in the SEC Filings;

          (c) Financial Adviser understands that the Shares may not be offered, sold, or transferred in any manner, unless subsequently registered under the 1933 Act, or unless there is an exemption from such registration and an opinion of counsel for BioTime has been rendered stating that such offer or transfer will not violate any federal or state securities laws;

          (d) Financial Adviser understands and agrees that all certificates evidencing the Shares shall bear an appropriate legend to the effect that the securities have not been registered under the 1933 Act and may not be sold or transferred in the absence of such registration or an exemption therefrom.

          (e) Financial Adviser has such knowledge and experience in financial and business matters to enable it to utilize the information contained in the SEC Filings, or otherwise made available to Financial Adviser to evaluate the merits and risks of an investment in the Shares and to make an informed investment decision with respect thereto.

          (f) Financial Adviser is purchasing the Shares solely for Financial Adviser’s own account and for long-term investment purposes, and not with a view to, or for sale in connection with, any distribution of the Shares; and

          (g) Financial Adviser is an “accredited investor,” as such term is defined in Regulation D promulgated under the 1933 Act.

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     4.     Registration Rights.

          (a) BioTime agrees, at its expense, upon written request from the Financial Adviser, to register under the 1933 Act, the Shares and to take such other actions as may be necessary to allow the Shares to be freely tradable, without restrictions, in compliance with all regulatory requirements. A written request for registration shall specify the quantity of the Shares intended to be sold, the plan of distribution and the identity of the sellers, which may include the Financial Adviser and assignees of its rights hereunder (collectively, “Selling Securities Holders”), and whether the registration shall be pursuant to an underwritten public offering or a “shelf” registration pursuant to Rule 415 (or similar rule that may be adopted by the Securities and Exchange Commission). BioTime shall not be obligated to file more than two such registration statements, other than registration statements on Form S-3. BioTime shall keep such registration statements effective for a period of at least nine months, except that registration statements on Form S-3 shall be kept effective for at least three years (or such lesser period as the parties may agree, but in no event beyond the completion of the distribution or distributions being made pursuant thereto). BioTime shall utilize Form S-3 if it qualifies for such use. BioTime shall make all filings required with respect to the registration statements and will use its best efforts to cause such filings to become effective, so that the Shares being registered shall be registered or qualified for sale under the securities or blue sky laws of such jurisdictions as shall be reasonably appropriate for distribution of the Shares covered by the registration statement. BioTime will furnish to the Selling Securities Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the 1933 Act and such other related documents as the Selling Securities Holders may reasonably request in order to effect the sale of the Shares. To effect any offering pursuant to a registration statement under this Section, BioTime shall enter into an agreement containing customary representations and warranties, and indemnification and contribution provisions, all for the benefit of Selling Securities Holders, and, in the case of an Underwritten public offering, an underwriting agreement with an investment banking firm selected by the Financial Adviser and reasonably acceptable to BioTime, containing such customary representations and warranties, and indemnification and contribution provisions

          (b) If, at any time, BioTime proposes to register any of its securities under the 1933 Act (otherwise than pursuant to paragraph 4(a) above or on a Form S-8 if such form cannot be used for registration of the Shares pursuant to its terms), BioTime shall, as promptly as practicable, give written notice to the Financial Adviser. BioTime shall include in such registration statement any Shares proposed to be sold by the Selling Securities Holders. Notwithstanding the foregoing, if the offering of BioTime’s securities is to be made through underwriters, BioTime shall not be required to include Shares if and to the extent that the managing underwriter reasonably believes in good faith that such inclusion would materially adversely affect such offering unless the Selling Securities Holders agree to postpone their sales until 10 days after the distribution is completed.

          (c) BioTime shall pay the cost of the registration statements filed pursuant to this Agreement, including without limitation all registration and filing fees, fees and expenses of

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compliance with securities or blue sky laws (including counsel’s fees and expenses in connection therewith), printing expenses, messenger and delivery expenses, internal expenses of BioTime, listing fees and expenses, and fees and expenses of BioTime’s counsel, independent accountants and other persons retained or employed by BioTime. Selling Securities Holders shall pay any underwriters discounts applicable to Shares.

          (d) BioTime agrees that upon the sale of Shares pursuant to a registration statement or an exemption, upon the presentation of the certificates containing such legend to it’s transfer agent, it will remove such legend. BioTime further agrees to remove the legend at such time as registration under the 1933 Act shall no longer be required.

     5.     AMEX Listing. Greenbelt agrees that the issuance of the Shares under this Agreement is subject to compliance with the rules of the American Stock Exchange (AMEX). If issuance of any of the Shares would violate any AMEX rule or if any of the Shares are denied listing on AMEX because the amount exceeds the amount permissible to be issued to Greenbelt under any AMEX rule, in lieu of issuing such Shares BioTime will pay Greenbelt an amount of cash to be agreed upon, but not more than the fair market value of such Shares.

     6.     Other Provisions. Except as expressly modified by this letter, all terms and provisions of the Agreement shall remain in effect.

         
    BIOTIME, INC.
         
    By   /s/ Hal Sternberg
       
        Hal Sternberg, Vice President, Member of
        the Office of the President
         
    By   /s/Judith Segall
       
        Judith Segall, Vice President, Secretary, and
        Member of the Office of the President
         
    GREENBELT CORP.
         
    By   /s/Gary K. Duberstein
       
        Gary K. Duberstein, Vice President

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